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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
A BILL FOR
An Act to regulate the lobbying of public officials; and for other
purposes.
Contents
9Duration of registration
and cancellation and surrender
11Notification of change of
details
12Exclusion of information
from register
Part 3—Restrictions
on lobbying
13Certain former or current
public officials must not engage in lobbying
16Delegation
by Chief Executive
17False or
misleading information
Schedule 1—Transitional
provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Lobbyists Act 2015.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, unless the contrary intention appears—
Chief Executive means the Chief Executive of the
administrative unit of the Public Service that is responsible for assisting a
Minister in the administration of this Act;
government board means a body corporate—
(a) comprised of persons, or with a governing body comprised of persons, a
majority of whom are appointed by the Governor, a Minister or an agency or
instrumentality of the Crown; or
(b) subject to control or direction by a Minister;
lobbying—see
section 4
;
public official means—
(a) a Minister or Parliamentary Secretary; or
(b) a member of staff of a Minister or Parliamentary Secretary (including
a member of staff in an electorate office); or
(c) any other Member of Parliament or a member of staff of such a Member;
or
(d) a public sector employee; or
(e) an individual who is engaged under a contract to provide services to
or on behalf of a public sector agency; or
(f) a member of a government board;
public sector agency has the same meaning as in the
Public
Sector Act 2009
;
public sector employee has the same meaning as in the
Public
Sector Act 2009
;
register means the register of lobbyists under
section 10
;
registration means registration under
Part 2
.
(1) For the
purposes of this Act, a person will be taken to engage in lobbying if the
person, for money or other valuable consideration, communicates with a public
official (in person, in writing or by telephone or other electronic means) on
behalf of a third party for the purpose of influencing the outcome
of—
(a) legislation, or a government decision or policy, whether existing or
proposed; or
(b) an application for any approval, consent, licence, permit, exemption
or other authorisation or entitlement under any Act or law of this State;
or
(c) the awarding of a contract or grant or the allocation of funding;
or
(d) any other exercise by the official of his or her functions or
powers,
(whether the person is acting as a principal in so communicating or as an
employee or agent of another).
(2) However, a
person will not be taken to engage in lobbying—
(a) if the person holds office as a public official and communicates with
the public official in the ordinary course of holding that office; or
(b) if the person is a legal practitioner (holding a current practising
certificate under the
Legal
Practitioners Act 1981
) and communicates with the public official in the ordinary course of that
person's profession as a legal practitioner; or
(c) if the person is an accountant or financial adviser (holding
qualifications of a kind prescribed by regulation) and acts in circumstances
prescribed by regulation; or
(d) if the person belongs to a class prescribed by regulation and acts in
circumstances prescribed by regulation.
(3) For the
purposes of
subsection (1)
, a person will not be taken to communicate with a public official on
behalf of a third party if the third party is a designated organisation and the
person, being an employee of the organisation, communicates with the public
official in the ordinary course of that employment.
(4) In this section—
designated organisation means—
(a) an employer organisation, employee organisation, professional
organisation or some other organisation established to represent the industrial
or professional interests of its members; or
(b) an organisation established for a charitable, educational, benevolent,
humanitarian, religious, recreational, sporting or philanthropic purpose;
or
(c) an organisation, or an organisation of a kind, prescribed by
regulation.
(1) A person must not engage in lobbying except in accordance with a
registration under this Act.
Maximum penalty:
(a) in the case of a body corporate—$150 000;
(b) in the case of a natural person—$30 000 or imprisonment for 2
years.
(2) If a person is found guilty of an offence against this section, the
amount or value of any payment (whether monetary or non-monetary) received by
the person for lobbying while the person was not registered is, unless the court
otherwise orders, forfeited to the Crown.
(3) In proceedings for an offence against this section, or on appeal, the
court may order that the amount or value of the payment not be forfeited or, if
it has been forfeited, that it be returned to a specified person.
(4) For the purposes of this section, the value of a non-monetary payment
may be determined by the court on the basis of a reasonable estimate in dollars
of the value of the non-monetary payment to the defendant.
6—Entitlement
to be registered
A person is entitled to be registered if—
(a) the person is, in accordance with this Act, entitled to apply for
registration1; and
(b) in addition—
(i) in the case of a natural person, the person—
(A) has not been convicted of an indictable offence; or
(B) has not, during the period of 10 years preceding the application for
registration, been convicted of a summary offence of dishonesty; or
(ii) in the case of a body corporate, no director of the body
corporate—
(A) has been convicted of an indictable offence; or
(B) has, during the period of 10 years preceding the application for
registration, been convicted of a summary offence of dishonesty.
Note—
, and
(c)(ii)
of this Act disentitle persons from applying for registration in certain
circumstances.
7—Application
for registration
(1) An application for registration—
(a) must be made to the Chief Executive in the manner and form determined
by the Chief Executive; and
(b) must be accompanied by the fee (if any) fixed by regulation.
(2) The Chief Executive
may, by notice in writing, require a person to provide information or further
information in connection with an application for registration, verified, if
necessary, by statutory declaration.
(3) The Chief Executive—
(a) must refuse an application for registration if satisfied that the
applicant is not entitled to be registered under
section 6
; or
(b) may, without further notice, refuse an application for registration if
the person fails to comply with a notice under
subsection (2)
within 28 days after service of the notice.
(4) The Chief Executive must notify the person in writing of the refusal
of the person's application for registration.
(1) Subject to
subsection (3)
, a registered person must, not later than 30 days (or such longer period
prescribed by regulation) after the end of a calendar year—
(a) pay to the Chief Executive the fee (if any) fixed by regulation;
and
(b) lodge with the
Chief Executive a return that contains the following details in relation to that
calendar year:
(i) the name of
each person or body for or on behalf of whom the registered person has engaged
in lobbying, or with whom the person has had an agreement to engage in
lobbying;
(ii) the name of each public official who was lobbied by the registered
person;
(iii) the subject matter of the lobbying engaged in;
(iv) the name of any person employed by or otherwise engaged by the
registered person to engage in lobbying (whether or not the person in fact
engaged in lobbying);
(v) any other details prescribed by regulation.
(2) The Chief
Executive may, by notice in writing—
(a) require a registered person to provide, within the period specified in
the notice, information or further information in connection with a return,
verified, if necessary, by statutory declaration; or
(b) require a registered person who has failed to pay the fee or lodge the
return in accordance with this section to make good the default and, in
addition, to pay to the Chief Executive the amount prescribed by regulation as a
penalty for default.
(3) A registered person
is not required to pay a fee and lodge a return under this section if the person
only engaged in lobbying as an employee of, or person otherwise engaged by,
another registered person during the calendar year to which the return
relates.
9—Duration
of registration and cancellation and surrender
(1) A person's registration remains in force until—
(a) the registration is cancelled or surrendered; or
(b) the person dies or, in the case of a body corporate, is
dissolved.
(a) must cancel a
person's registration if satisfied that—
(i) events have occurred such that the person is no longer entitled to be
registered; or
(ii) the person was not, when first applying for registration, entitled to
be registered; and
(b) may, without
further notice, cancel a person's registration if satisfied
that—
(i) the person has failed to comply with a requirement under this Act;
or
(ii) the person has breached a condition of an exemption under
section 12
or a condition of the person's registration under
section 13
.
(3) If a person's
registration is cancelled under
subsection (2)
, the person is disqualified from holding registration, and is not entitled
to apply for registration, for a period of 2 years from the date of the
cancellation.
(4) The Chief Executive must notify the person in writing of the
cancellation of the person's registration under
subsection (2)
.
(5) A registered person may surrender his or her registration in the
manner prescribed by regulation.
(1) The Chief Executive must keep a register of persons who engage in
lobbying.
(2) Subject to
section 12
, the register must include the following details in relation to each
person who engages in lobbying (to the extent to which they are
applicable):
(a) the name,
including any business name or trading name, of the person;
(b) the business address of the person;
(c) the ABN of the person;
(d) the name of each owner of the person's business and any partners or
major shareholders in the business;
(e) the name of
each employee of, or person otherwise engaged by, the person and their positions
in the business;
(f) any condition of
registration applying in relation to the person under
section 13
;
(g) each return provided by the person under
section 8(1)
;
(h) any details provided to the Chief Executive under
section 11(1)(a)
in relation to new lobbying agreements;
(i) any other details considered appropriate by the Chief Executive or
prescribed by regulation.
(3) The Chief Executive may remove from the register details relating to a
person whose registration is no longer in force.
(4) The register is to be available for inspection by members of the
public—
(a) without fee, during ordinary office hours at a public office, or
public offices, determined by the Chief Executive; and
(b) on a website determined by the Chief Executive.
11—Notification
of change of details
(1) A registered person
must comply with the following notification requirements:
(a) subject to
subsection (2)
, the person must notify the Chief Executive, as soon as reasonably
practicable after entering into any new agreement with a person or body to
engage in lobbying, of the details prescribed by regulation in relation to that
agreement;
(b) the person must notify the Chief Executive of the following matters
within 14 days of their occurrence:
(i) any conviction of an offence that disentitles the person to be
registered under
section 6
;
(ii) any change in the person's registered details referred to in
section 10(2)(a)
to
(f)
(inclusive).
Maximum penalty: $5 000.
(2) A registered
person is not required to notify the Chief Executive of the details referred to
in
subsection (1)(a)
in relation to a new agreement if the person is only to be engaged in
lobbying under the agreement as an employee of, or person otherwise engaged by,
another registered person who is a party to the agreement.
12—Exclusion
of information from register
(1) The Chief
Executive may, on his or her own initiative or on application by a registered
person, exempt some or all of the person's details provided in a return under
section 8(1)
or provided under
section 11(1)(a)
from inclusion in the register if satisfied that the details consist
of—
(a) personal information of a confidential nature; or
(b) information that has a commercial or other value that would be, or
could reasonably be expected to be, destroyed or diminished if the information
were disclosed; or
(c) information the disclosure of which would, or could reasonably be
expected to, prejudice the commercial position of a person or confer a
commercial advantage on a person; or
(d) information the disclosure of which would be contrary to the public
interest for any other reason; or
(e) information the disclosure of which would be inappropriate for any
other reason.
(2) An application under
subsection (1)
—
(a) must be made to the Chief Executive in the manner and form determined
by the Chief Executive; and
(b) must be accompanied by the fee (if any) fixed by regulation.
(3) An exemption
granted on an application by a person under
subsection (1)
—
(a) must be by notice in writing to the person; and
(i) a condition
that the exemption be reviewed by the Chief Executive in a manner prescribed by
regulation for the purpose of determining whether the grounds for exemption
still exist; and
(ii) any other conditions specified in the exemption or prescribed by
regulation; and
(c) may be varied by notice in writing to the person; and
(d) remains in force until—
(i) 1 January next following its grant; or
(ii) such time as it may be revoked by the Chief Executive by notice in
writing to the person (following a determination by the Chief Executive on a
review under
paragraph (b)(i)
that the grounds for exemption no longer exist),
whichever is sooner.
(4) An exemption granted on the Chief Executive's own initiative may be
varied or revoked at any time without notice.
(5) Details excluded from the register under an exemption under this
section must be included in the register on expiry or revocation of the
exemption.
(6) Information that is subject to an exemption under this section is not
liable to disclosure under the
Freedom
of Information Act 1991
.
Part 3—Restrictions
on lobbying
13—Certain
former or current public officials must not engage in
lobbying
(1) Subject to
subsections (2)
and
(3)
—
(a) the following
provisions apply in relation to a person who ceases to hold office as a
Minister:
(i) the person must
not, during the period of 2 years after ceasing to hold that office, engage in
lobbying;
(ii) the person is
not entitled to apply for registration during that period;
(iii) any registration held by the person during that period is, by force
of this section, cancelled; and
(b) the following
provisions apply in relation to a person who ceases to hold office as a
Parliamentary Secretary, a member of SAES (within the meaning of the
Public
Sector Act 2009
) or a person engaged as a member of a Minister's personal staff under
section 71 of that Act:
(i) the person must
not, during the period of 12 months after ceasing to hold that office, engage in
lobbying in respect of matters dealt with by the person in the ordinary course
of holding that office;
(ii) any
registration held by the person during that period is, by force of this section,
for the duration of that period, subject to a condition that the person must not
engage in lobbying in respect of matters dealt with by the person in the
ordinary course of holding that office; and
(c) the following
provisions apply in relation to a member of a government board:
(i) the person must not engage in lobbying during that period of
membership;
(ii) the person is not
entitled to apply for registration during that period;
(iii) any registration held by the person during that period is, by force
of this section, cancelled.
(2) If more than 1
paragraph of
subsection (1)
applies in relation to a person, all restrictions contained in the
relevant paragraphs apply concurrently, with the most stringent restriction
prevailing in the event of any inconsistency.
and
(b)
do not apply in relation to a person who ceased office before the
commencement of those respective paragraphs.
(1) A person must
not give or receive, or agree to the giving or receipt of, a success fee for
carrying on the business of lobbying.
Maximum penalty:
(a) in the case of a body corporate—$150 000;
(b) in the case of a natural person—$30 000 or imprisonment for 2
years.
(2) If a person is
found guilty of an offence against this section, the amount or value of the
success fee is, unless the court otherwise orders, forfeited to the
Crown.
(3) In proceedings for
an offence against this section, or on appeal, the court may order that the
amount or value of the success fee not be forfeited or, if it has been
forfeited, that it be returned to a specified person.
(4) For the purposes of this section, the value of a non-monetary success
fee may be determined by the court on the basis of a reasonable estimate in
dollars of the value of the non-monetary success fee to the defendant.
(5) In this section—
success fee, in relation to lobbying, is an amount of money
or other valuable consideration, the receipt of which is contingent on the
outcome of the lobbying.
(1) A person—
(a) whose application for registration has been refused by the Chief
Executive; or
(b) whose registration has been cancelled,
may seek a review of the Chief Executive's decision by the Tribunal under
section 34 of the
South
Australian Civil and Administrative Tribunal Act 2013
.
(2) Subject to
subsection (4)
, an application for review may be made to the Tribunal within 1 month
after the making of the Chief Executive's decision.
(3) The Chief Executive must, if so required by the person, state in
writing the reasons for the Chief Executive's decision.
(4) If the reasons
of the Chief Executive are not given in writing at the time of the making of the
Chief Executive's decision and the person (within 1 month of the making of
the decision) requires the Chief Executive to state the reasons in writing, the
time for making an application for review runs from the time at which the person
receives the written statement of those reasons.
(5) In this section—
Tribunal means the South Australian Civil and Administrative
Tribunal established under the
South
Australian Civil and Administrative Tribunal Act 2013
.
16—Delegation
by Chief Executive
(1) The Chief Executive may, by instrument in writing, delegate a power or
function under this Act—
(a) to a particular person; or
(b) to the person for the time being performing particular duties or
holding or acting in a specified position.
(2) A power or function delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation—
(a) may be absolute or conditional; and
(b) does not derogate from the power of the delegator to act personally in
a matter; and
(c) is revocable at will.
17—False
or misleading information
A person must not make a statement that is false or misleading in a
material particular (whether by reason of the inclusion or omission of any
particular) in any information provided under this Act.
Maximum penalty: $10 000.
(1) A notice or other document required or authorised to be given to a
person for the purposes of this Act may—
(a) be given to the person personally; or
(b) be posted in an envelope addressed to the person—
(i) at the person's last known address; or
(ii) at the person's address for service; or
(c) be left for the person at the address for service with someone
apparently over the age of 16 years; or
(d) be transmitted by fax or e-mail to a fax number or e-mail address
provided by the person (in which case the notice will be taken to have been
given at the time of transmission).
(2) The address for service of a registered person is the address for the
person that appears in the register.
(1) The Governor may
make such regulations as are contemplated by this Act, or as are necessary or
expedient for the purposes of this Act.
(2) Without limiting the generality of
subsection (1)
, the regulations may—
(a) regulate the conduct of—
(i) persons who engage
in lobbying; or
(ii) persons who employ or otherwise engage such persons; and
(b) provide for or in relation to the payment, recovery, refund or waiver
of fees payable under this Act; and
(c) fix fines (not exceeding $5 000) for offences against the regulations;
and
(d) fix expiation fees (not exceeding $315) for alleged offences against
the regulations.
(3) The regulations may incorporate, or operate by reference to, a code of
conduct as in force at a specified time or as in force from time to
time.
(4) If a code of conduct is referred to or incorporated in the
regulations—
(a) a copy of the code must be kept available for inspection by members of
the public, without charge and during normal office hours, at an office
determined by the Chief Executive;
(b) evidence of the contents of the code may be given in legal proceedings
by production of a document apparently certified by the Chief Executive to be a
true copy of the code.
(5) A regulation may—
(a) be of general or limited application and may vary in operation
according to factors stated in the regulation; and
(b) leave a matter or thing to be determined, dispensed with, regulated or
prohibited according to the discretion of the Chief Executive either generally
or in a particular case or class of cases; and
(c) exempt (conditionally or unconditionally) a person or class of persons
from specified provisions of this Act.
(6) The Governor
may, by regulation, make additional provisions of a saving or transitional
nature consequent on the enactment of this Act.
(7) A provision of
a regulation made under
subsection (6)
may, if the regulation so provides, take effect from the commencement of
this subsection or from a later day.
(8) To the extent to which a provision takes effect under
subsection (7)
from a day earlier than the day of the regulation's publication in the
Gazette, the provision does not operate to the disadvantage of a person
by—
(a) decreasing the person's rights; or
(b) imposing liabilities on the person.
Schedule 1—Transitional
provisions
(1) If a success fee is payable in accordance with an agreement that was
in place immediately before the commencement of
section 14
, the agreement is, on that commencement, void to the extent that it
provides for a success fee to be given or received for lobbying engaged in on or
after that commencement.
(2)
Section 14
does not apply in respect of a success fee that is given or received
within 3 months after the commencement of that section, provided that the
success fee relates to lobbying engaged in before that commencement.